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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 24

BAMA KAMA 23 & 24 - This daf has been dedicated l'Iluy Nishmas Esther Chaya Rayzel bas Gershon Eliezer, upon her Yahrzeit and Yom Kevurah, by her daughter and son-in-law, Jeri and Eli Turkel. Esther Friedman was a woman of valor who was devoted to her family and gave of herself unstintingly, inspiring all those around her.



(a) In spite of the Pasuk "T'mol, Shilshom ve'Lo Yishmerenu" (Rebbi Yehudah's source for saying that Mu'ad depends on days), Rebbi Meir considers an animal a Mu'ad even on the same day - because, he says, if it is a Mu'ad when its gorings are more spaced out, then how much more so, when they are closer together.

(b) When the Chachamim retorted 'Zavah Tochi'ach', they were referring to - a woman who becomes a Zavah when she has three sightings on three consecutive days, but not if she sees three times on the same day (ostensibly, dispensing with Rebbi Meir's 'Kal va'Chomer').

(c) And when, to counter this, Rebbi Meir quoted the Pasuk "*ve'Zos* Tih'yeh Tum'aso be'Zovo" - he meant to reply that the preclusion of a Zavah from the Din of three sightings is not because logically, sightings are any worse than days, but because of the 'Gezeiras ha'Kasuv' of "ve'Zos".

(d) On the other hand, the Tana learns from "ve'ha'Zav es Zovo la'Zachar ve'la'Nekeivah" - that a woman, like a man, becomes a Zavah when she sees on three consecutive days.

2) Rebbi Meir chooses to include the number of days in the Hekesh of women to men, and to preclude the number of sightings from "ve'Zos" (and not vice-versa) is (not because it is more logical to include days than sightings [which would be a Pircha on his own 'Kal va'Chomer'] but) - because it is more correct to preclude sightings from "ve'Zos", since that is the topic of the Pasuk there.


(a) In another Beraisa, Rebbi Yossi holds like Rebbi Yehudah with regard to becoming a Mu'ad, but like Rebbi Meir with regard to its regaining its status of Tam. Rebbi Shimon has a fourth opinion - holding like Rebbi Meir with regard to becoming a Mu'ad, but like Rebbi Yehudah with regard to its regaining its status as a Tam.

(b) Rav Nachman Amar Rav Ada bar Ahavah rules like Rebbi Yehudah with regard to the former Din, but like Rebbi Meir with regard to the latter - because that is how Rebbi Yossi holds, giving Rebbi Yehudah two votes in the Reisha and Rebbi Meir two, in the Seifa.

(c) The reason that he did not take the reverse stance, following the opinion of Rebbi Shimon, giving Rebbi Meir two votes in the Reisha and Rebbi Yehudah two, in the Seifa is - because he was really relying on the principle 'Halachah ke'Rebbi Yossi, Ho'il ve'Nimuko Imo' (the Halachah is always like Rebbi Yossi [provided he does not argue with a majority], because his reasons and proofs are very sound).

(a) They asked a She'eilah whether the three days warning are for the benefit of the ox or the owner. The difference will be - in a case when all three sets of witnesses only appear in Beis-Din after the ox has gored on three consecutive days, in which case, the ox has had its three warnings (which comprises nothing more than ascertaining that it gored on three different days), whereas the owner (who requires a warning to give him a chance to tame his animal), has not.

(b) We try to resolve this She'eilah from a Beraisa, which opens with the statement that - the warning must take place in front of the owner and in front of Beis-Din.

(c) When the Tana says that if two different witnesses warned the ox each of the three times that it gored, they are considered ...

1. ... three sets of witnesses - he means that in the event that one, or even two, of them becomes disqualified, the testimony of the third pair remains intact, and the Mazik is obligated to pay Chatzi Nezek for each subsequent testimony that still stands.
2. ... one set of witnesses as far as Hazamah is concerned - he means that the ox remains a Tam, and the Mazik is exempt from paying full damages (though this seems obvious, seeing as there are no witnesses who testify that the animal gored three times).
(d) Despite the fact that the defendant is now Patur from paying Nezek Shalem, it does not follow that the first pair of witnesses (and subsequently the second pair, should they become Zomemin, too) are obligated to pay for the full damage that they attempted to make the Nizak pay - because Eidim Zomemin are only punishable if all the witnesses concerned become Zomemin, and not just some of them.
(a) In the event that the third pair too, are proved to be Zomemin - each pair must pay Chatzi Nezek for the damage that the ox did when it was a Tam, and they share the additional half damage (of the Ha'ada'ah [the damage that it did when after becoming] a Mu'ad) between them.

(b) We now try to prove from here that it is the ox that becomes a Mu'ad and they all came on the third day (as we explained earlier) - because if it was the owner (and they all came on three different days, why can the first set of witnesses not say that they came to obligate the Mazik to pay Chatzi Nezek, and knew nothing about the other two sets). In other words, why should they have to pay towards the second Chazti Nezek of the Ha'da'ah?

(c) Rav Kahana counters this by asking - that even if they come to make *the ox* a Mu'ad, why can the last set of witnesses not present the same argument? Why can they not argue that they came to obligate the owner Chatzi Nezek, and were not aware of the fact that there were other witnesses who were coming to testify that the ox had gored on two previous occasions?




(a) We therefore establish the Beraisa when all three pairs of witnesses were signalling to each other, a clear sign that the third set of witnesses were fully aware of the other two sets intentions, and that they themselves intended to declare the ox a Mu'ad. A similar answer is given by Rav Ashi, who proves that all the sets of witnesses must have known about each other - because they all entered the Beis-Din together.

(b) Either way, we have now proved - that the witnesses come to make *the ox* a Mu'ad.

(c) Ravina establishes the Beraisa when the third set of witnesses only knew the owner, but not the ox - and they testify that there was a goring ox in his herd (obligating the owner to watch his entire herd).

(d) He also agrees that the witnesses come to declare the ox a Mu'ad, because when the first two pairs testified on the first and second days, how could they possibly know that, on the following day, another pair would testify on the third goring?

(a) We ask what the Din will be in a case where Levi incites Shimon's ox to bite Reuven - whether Shimon is liable.

(b) Even though he did nothing, he might nevertheless be liable, for not getting rid of his animal (which he ought to have known was dangerous), or at least for not keeping it out of harm's way.

(c) Levi is not Chayav for inciting the dog against Reuven - because what he did is considered 'G'rama' (causing damage indirectly, for which is not liable at the hand of Beis-Din, as we shall see later).

(a) Rebbi Zeira cites our Mishnah 've'Tam, she'Yehei Tinokos Memashmeshin Bo ve'Eino Noge'ach', from which he tries to resolve the current She'eilah - by extrapolating that if it would gore them, the owner would be liable.

(b) Abaye refutes this proof however, on the grounds that the Tana does not even hint that the owner would have been Chayav if the ox had gored the children. Even if he would not be liable - the significance of the ox not goring the children is that it would change its status into a Tam.

(a) We try to resolve the She'eilah from the Beraisa 'Shisah Bo es ha'Kelev, Shisah Bo es ha'Nachash Patur' - by inferring that the inciter may well be Patur, but the owner is liable.

(b) We negate this inference by - amending the Beraisa to read 'Af Meshaseh Patur'.

(c) Even assuming that the owner of the dog is liable in the previous case, says Rava, in a case where Reuven himself incited Shimon's dog which subsequently bit him - he is Patur, because of the principle 'Kol ha'Meshaneh u'Va Acher ve'Shinah Bo, Patur' (and here too, Reuven behaved unconventionally by inciting the dog, in which case the dog is Patur if it too, behaved unconventionally, by biting *him*).

(d) Rav Papa thought that Rava conformed - with Resh Lakish, as we shall now see.

(a) Resh Lakish says that if one cow passes another cow that is crouching in the street, and the latter kicks the former, it is liable for damages. In the reverse case, if the walking cow kicked the crouching one and damaged it, he is Patur (because of 'Kol ha'Meshaneh ... ').

(b) Rava told Rav Papa - that really, in this latter case, he disagreed with Resh Lakish, because, even though the walking cow is justified in walking over the crouching one, it does not have the authority to kick it, and the owner would therefore be liable.

(a) According to the Rabbanan, the owner of an ox that gored in the Nizak's domain pays Chatzi Nezek, according to Rebbi Tarfon - he pays Chatzi Nezek.

(b) And he derives this - from a 'Kal va'Chomer' from Keren in the Reshus ha'Rabim, because seeing as it is more stringent there (paying Chatzi Nezek) than Shen va'Regel (which is Patur altogether), it remains more stringent in the Reshus ha'Nizak, too, obligating him to pay full damages.

(c) The Rabbanan ask on the 'Kal va'Chomer' however - from the principle of 'Dayo La'vo min ha'Din Lih'yos ke'Nadun' (meaning that, since we learn Keren in the Reshus ha'Nizak from Keren in the Reshus ha'Rabim, the outcome cannot possible be more stringent than the source (which is Chayav to pay only Chatzi Nezek).

(d) Rebbi Tarfon counters their Pircha - by relearning the 'Kal va'Chomer' by Keren in the Reshus ha'Rabim (not from Keren in the Reshus ha'Rabim - although he will need to come on to that too, but) from Shen va'Regel in the Reshus ha'Nizak.

12) The Rabbanan do not accept Rebbi Tarfon's explanation - on the grounds that seeing as the 'Kal va'Chomer' must, at one point, rely on Keren in the Reshus ha'Rabim, 'Dayo' will still apply at that point, even though it is not with regard to the main point of the 'Kal va'Chomer'.

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